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TMI Blog2006 (7) TMI 625X X X X Extracts X X X X X X X X Extracts X X X X ..... way-bills as required under the Rules framed under the 1994 Act and got those duly endorsed by the check-post authorities. The vehicle proceeded towards Calcutta. On the same date the vehicle was intercepted at Banitabla near Uluberia in the district of Howrah. In spite of production of all the relevant documents including the endorsed way-bill the vehicle was detained and brought to Central Section of the Commercial Tax Directorate at Beliaghata. The disputed goods were seized on January 14, 2000 on the ground of huge discrepancy between the value of the goods declared in the way-bill at Jamsolaghat check-post in Orissa and that declared in the way-bill at Chichira check-post in West Bengal. There was dispute over the value actually declared in the way-bill at Jamsolaghat check-post. The petitioner produced certificates issued by the authorities of entry check-post at Sahela and of the exit check-post at Jamsolaghat in Orissa to show that the declared value was actually Rs. 28,000 and not Rs. 2,80,000 as was initially reported by the Commercial Tax Officer, Jamsolaghat by his letter dated January 18, 2000. A penalty proceeding under section 71 of the 1994 Act was initiated. By a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only for the purpose of detection of evasion of sales tax, the statutory authority must exercise its jurisdiction within the four corners of the statute. 14.. If by reason of under-invoicing the petitioner has not evaded any tax nor there was any scope therefor the question of assessing the value of said goods did not arise." It is pointed out that the aforesaid decision of the Calcutta High Court was followed by this Tribunal in Bestley Goods Transport Corporation v. C.T.O., Duburdih Check-post (RN-67 of 2000 decided on August 22, 2002(1)). In Bestley Goods Transport Corporation [2006] 146 STC 412 (WBTT), this Tribunal held (page 418): "Therefore, in view of the findings made by the honourable court we are of opinion that under-invoicing cannot be the ground for seizure. The provisions of sub-rule (9) of rule 212 actually do not empower the check-post officer or such other officer to seize the goods on the ground of under-invoicing." Mr. L.N. Gupta, learned Advocate appearing for the respondents, has submitted that the judgment in Bhabaneswar Singh [2001] 122 STC 494 (Cal), has not laid down any law to be followed but has recorded its observation without hearin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll with the description, quantity, weight or value which are actually found in such consignment. (10) Where, upon verification made under sub-rule (9) on opening the container or packages, if necessary, the description, quantity, weight or value of the goods in any consignment is found by the authority referred to in sub-rule (9) to be at variance with the description, quantity, weight or value of the goods disclosed in the way-bill, such authority shall prepare a report in the presence of the driver or person-in-charge of the vehicle and get such report countersigned by him, or where the driver of person-in-charge of the vehicle is not available for any reason, such authority shall prepare a report in the presence of one witness after explaining to him the content of the report and get the report countersigned by him, and shall, thereafter, seize the consignment of goods under section 70 for contravention of the provisions of section 68." Sub-rule (9) authorised the Commercial Tax Officer or Inspector to verify "correctness" of the value as mentioned in the way-bill with the value which are "actually found" in such consignment (emphasis(1) supplied). Wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Gundachar reported in AIR 1968 SC 464 which has reiterated that "whether a corporation created by a statute has a particular power depends exclusively on whether that power has been expressly given to it by the statute regulating it or can be implied from the language used" and that "the question is simply one of construction of language and not of presumption". In the present case the language of the Rules not only by implication but by clear expression, conferred power to verify by all reasonable means whether the value or price shown was correct. Thus it does not require any presumption to construe the actual meaning and purpose of sub-rules (9) and (10). Mr. Bose has also relied on the pronouncement of the Supreme Court on interpretation of statutory provisions in Sakshi v. Union of India reported in [2004] 5 SCC 518. In the said case the Supreme Court restated principles of construction: "It is well-settled principle that the intention of the Legislature is primarily to be gathered from the language used, which means that attention should be paid to what has been said as also to what has not been said. As a consequence a construction which requires ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... possible, that which preserves its workability and efficacy is to be preferred to the one which would render it otiose or sterile." Several other cases re-affirming known principles of construction have been cited. It is not necessary to discuss all those decisions as the principles are well-settled. Main weapon in the armoury of Mr. Bose is the decision of the Division Bench of the High Court in Bhabaneswar Singh [2001] 122 STC 494 (Cal) which has held on the basis of concession from the Bar that there did not exist any provision in the pre-amendment rule for seizure in case of underinvoicing. According to him the said Division Bench Judgment of the Calcutta High Court is binding on this Tribunal and this Tribunal has actually followed the said judgment in several cases. He has also sought to use the principles of "stare decisis" to submit that this Tribunal should not make any departure and follow the decision in Bhabaneswar Singh [2001] 122 STC 494 (Cal) without questioning its value as "a precedent". In Union of India v. Dhanwanti Devi [1996] 6 SCC 44, the Supreme Court has explained how to determine ratio of a decision and what constitutes binding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question of law fairly arising in the case, and necessary to its determination, is an authority, or binding precedent in the same court, or in other courts of equal or lower rank in subsequent cases where the very point is again in controversy unless there are occasions when departure is rendered necessary to vindicate plain, obvious principles of law and remedy continued in justice. It should be invariably applied and should not ordinarily be departed from where decision is long-standing and rights have been acquired under it, unless consideration of public policy demands it . . ." We have already pointed out that judgment in Bhabaneswar Singh [2001] 122 STC 494 (Cal) was based upon concession. There was neither any argument, nor any discussion on the question of interpretation of those unamended rules 212(9) and 212(10). The judgment did not contain any analysis or reason for taking the view that before amendment of subrules (9) and (10) no seizure could be made for under-invoicing. Bhabaneswar Singh's case [2001] 122 STC 494 (Cal) was decided on December 4, 2000. The said decision was followed by this Tribunal in some cases. There is nothing before us to show that suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st Bengal at the relevant point of time. We have noticed that in some cases 20 per cent is added to the purchase value to arrive at the sale price. In the application the petitioner has alleged that the Commercial Tax Officer proceeded on the basis that the petitioner declared the value of the goods at Rs. 2,80,000 in Orissa although latest certificate certified that the declared value was Rs. 28,000 and not Rs. 2,80,0000. The impugned order is not founded upon the value declared in Orissa. The department collected materials, enquired in the market and determined the purchase value of the goods on the basis of such materials. We accept that the petitioner declared Rs. 28,000 as the value of the goods in Orissa check-post but such acceptance does not vitiate the determination independent of the declared value in Orissa. The concerned authority imposed them maximum penalty of Rs. 25 per cent of the determined sale value. We have already stated that in some cases 20 per cent is added to the purchase value. At the time of import and on the date of order the prevailing view was that no seizure could be made on the ground of under-invoicing. Considering all these circumstances we are ..... X X X X Extracts X X X X X X X X Extracts X X X X
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